Public Citizen, Inc. v. Pinellas County

• Decision Date: 19 May 2004
• Docket Number: No. 8:01CV943T-23TGW.,8:01CV943T-23TGW.
• Citation: 321 F.Supp.2d 1275
• Parties: PUBLIC CITIZEN, INC., et al., Plaintiffs, v. PINELLAS COUNTY, et al., Defendants.
• Court: U.S. District Court — Middle District of Florida

321 F.Supp.2d 1275

PUBLIC CITIZEN, INC., et al., Plaintiffs, v. PINELLAS COUNTY, et al., Defendants.

No. 8:01CV943T-23TGW.

United States District Court, Tampa Division. M.D. Florida.

May 19, 2004.

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Robert R. Hearn, Zuckerman Spaeder, L.L.P., Tampa, FL, Bonnie I. Robin-Vergeer, Alan B. Morrison, Public Citizen Litigation Group, Washington, DC, Geoffrey W. Peters, Geoffrey W. Peters, P.C., Vienna, VA, for Public Citizen, Inc., Public Citizen Foundation, Inc., Greenpeace, Inc., Greenpeace Fund, Inc., American Charities for Reasonable Fundraising Regulation, Inc., DMA-Nonprofit Federation.

Carl E. Brody, Jr., Pinellas County Attorney's Office, Clearwater, FL, for Pinellas County, a political subdivision of the State of Florida, Sheryl Lord, Director, Pinellas County Department of Consumer Protection.

ORDER

MERRYDAY, District Judge.

Public Citizen, Inc., and Public Citizen Foundation, Inc. (collectively, "Public Citizen"); Greenpeace, Inc., and Greenpeace Fund, Inc. (collectively, "Greenpeace"); American Charities for Reasonable Fundraising Regulation, Inc. ("American Charities");¹ and the Direct Marketing Association, Inc. ("DMA")² (collectively, the "charities"), move for summary judgment to enjoin the enforcement of Pinellas County Ordinance No. 93-106 (the "ordinance"), which regulates the solicitation of charitable contributions in Pinellas County (Docs. 42 & 43).³ The charities assert claims pursuant to Section 1983 of Title 42, United States Code (Doc. 1), and contend that the ordinance on its face and as applied to the charities violates the United States Constitution (Doc. 43).⁴ Specifically, the charities contend that the ordinance (1) imposes an impermissible prior restraint of protected speech in violation of the First Amendment, (2) imposes an unreasonable burden on protected speech in violation of the First Amendment, and (3) unduly burdens interstate commerce in violation of Article I's Commerce Clause (Doc. 1).⁵ The charities contend that the ordinance fails to achieve its stated purpose of preventing deception, fraud, and misrepresentation and of promoting the disclosure of information useful to a potential donor.

Pinellas County and Sheryl Lord, the director of the county's Department of Justice and Consumer Services⁶ (collectively, the "county"), move for summary judgment and argue that the ordinance (1) is narrowly tailored to advance a substantial interest and (2) comports with the Commerce Clause (Doc. 59).⁷ In addition, the county contends that an earlier action by fundraising consultants, in which American Charities appeared, adjudicates the charities' claims and renders this action an impermissible "second bite at the apple" (Doc. 60).

I. BACKGROUND

A. The Pinellas County Charitable Solicitation Ordinance

Promulgated pursuant to Section 496.421, Florida Statutes,⁸ the ordinance requires the registration of any charitable organization (and any sponsor,⁹ federated fundraising organization,¹⁰ or professional solicitor¹¹) that desires to solicit a charitable contribution in Pinellas County from other than a "member" of the charitable organization. Pinellas County Code § 42-272(a). A charitable organization may not "contract with any professional solicitor, federated fundraising agency, or sponsor for the purpose of raising or soliciting funds for the charity or sponsor before the professional solicitor, federated fundraising agency or sponsor has been issued a charitable solicitations permit" by the director of the Department of Justice and Consumer Services. Pinellas County Code § 42-321(c). Following the parties' motions for summary judgment, the county twice amended the ordinance (Docs. 81 & 88).¹² This order addresses the current version of the ordinance.

The ordinance requires "registration and full public disclosure by persons who solicit contributions for a charitable ... purpose¹³ from the public ... in order to prevent deception, fraud, or misrepresentation in the solicitation, use and reporting of contributions." Pinellas County Code § 42-270.¹⁴ The ordinance requires a charitable organization to register with the Department of Justice and Consumer Services (the "department") and requires a permit before soliciting a contribution in Pinellas County. See Pinellas County Code § 42-291.¹⁵ Generally, a permit expires in twelve months. See Pinellas County Code §§ 42-294(b) ("All permits ... shall be valid for 12 months from the date of issuance, except for one-time events.") & 42-294(d) ("A permit that is not renewed under this article shall expire one year from the date of issuance."). Section 42-292 of the ordinance requires filing a sworn application that discloses with respect to the applicant a name and business information; a conviction for theft, fraud, misrepresentation, or violation of any funds solicitation law; a denial, suspension, or revocation of a solicitation permit under the ordinance or under Florida's charitable solicitation law; and both the applicant's mailing and street address and the "federally issued identification number." Pinellas County Code §§ 42-292(a)(1) to 42-292(a)(5).¹⁶ In addition, an applicant must submit any agreement with a federated fundraising organization, professional solicitor, or sponsor; the applicant's registration or exemption statement issued by the state pursuant to Chapter 496, Florida Statutes; and the applicant's tax return (i.e., Internal Revenue Service ("IRS") Form 990 or 990-EZ) for the preceding year or, if exempt from filing a tax return, a "report of results" or an unaudited financial statement for the preceding fiscal year. See Pinellas County Code §§ 42-292(a)(6) & 42-292(a)(8) to 42-292(a)(10).¹⁷ Further, Section 42-292(a)(7) requires "[a] statement as to whether any of the owners, directors, or officers of the [applicant] ... are related as parent, spouse, child, or sibling to any other directors, officers, or owners of the applicant, or knowingly related to any officer, director, or trustee of any charitable organization or sponsor under contract to the [applicant] ..., or knowingly related to any supplier or vendor providing goods or services to any charitable organization or sponsor under contract to the applicant." Section 42-292(a)(11) requires identification of the purpose of the charitable organization and the method of execution.¹⁸ Finally, the ordinance requires information on each solicitation program, including the name of the solicitation, the manner or method of solicitation, the contemplated receipts and expenses of the solicitation, the proportion of the contribution destined for the "object of the solicitation," and the plan for the distribution of contributions. Pinellas County Code § 42-292(a)(12)(a) to (12)(e).¹⁹

Pursuant to Section 42-276(c), the director of the department (the "director") promulgated application forms to collect the information ostensibly required by the ordinance.²⁰ Aside from other information the "Charitable Solicitation New Permit Application," required for a new permit, requests the name, title, address, telephone and fax number, date of birth, and state and number of the driver's license of (1) a contact; (2) the applicant's chief elected, executive, or operating officer; (3) the individual "managing the solicitation described in [the] application;" (4) the applicant's treasurer or individual "with control of financial records;" and (5) the manager of any telephone room either in or operating into Pinellas County. In addition, the new permit application form requests the location for the planned solicitation; the method of solicitation; the "purpose or work of the organization benefitting from the solicitation" and how the work is "carried out;" and whether the applicant previously registered with the county and whether the applicant registered with the state. Further, the new permit application form requires disclosure of any "professional assistance;" the amount and method of compensation provided to any "professional" or other third party providing assistance; the projected contributions and gross revenues for the coming year either from Pinellas County residents or "[b]ased on ... [s]tate, or [n]ational [a]ccounting;" the projected cost of program services; the anticipated management and general expenses, separated into twenty-five categories;²¹ the fundraising expenses; the compensation of "officers, directors, etc.;" the "net assets or fund balances" at both the beginning and the end of the year; and whether any director, supervisor, manager, or "person with authority to receive and/or disburse solicitation income [has] ever been employed by or a member of another organization registered with Pinellas County for solicitation." In addition, the new permit application form requests whether the "applicant or any manager, director, supervisor, advisor, or other person with similar responsibilities and/or responsibility over income and distribution of income" (1) in the preceding ten years has been convicted of a violation of either the ordinance, the state charitable solicitation statute, or any other federal, state, or local law governing theft, fraud, misrepresentation, or the solicitation of funds and (2) in the preceding ten years has had a solicitation permit issued under either the ordinance or the state statute "suspended, revoked, or by court order [has] been required to cease operation or fined or otherwise sanctioned." Finally, the new permit application form requests whether any "owner, director, officer, supervisor, manager, or employee" of the applicant is a parent, spouse, child, or sibling of (1) any other owner, director, officer, supervisor, manager, or employee of the applicant or (2) any director, officer, supervisor, manager, or employee of any professional assistance firm "involved in a current services contract with the applicant."

The new permit application form requires attachment of a ...